The needs and views of young people are frequently overlooked by the legal system, even when it comes to matters directly affecting their care – or that of their siblings – according to a submission on the Family Law system, put together by Marrickville Legal Centre.
The Centre’s submission highlights what it calls the ‘default’ position of young people not having direct input into family law proceedings about parenting orders that affect them.
“The issue has been highlighted in a number of recent cases we have seen where young people estranged from a parent find themselves permanently separated from younger siblings that still live with the parent,” says Marrickville Legal Centre’s Family law and family violence solicitor, Dr Maree Livermore, who wrote the document.
“Family law now gives grandparents a specific path to use to protect their contact and relationship with grandchildren, yet there is no similar path for siblings,” she says.
The Centre has two current cases in which young people aged 16 and 17 are being prevented from seeing their siblings by a single parent.
In a third case, after the death of their mother last year, a young person, has applied for sole parental responsibility for his three siblings. Joel* is concerned about the welfare of his siblings who are in the care of their father, who has a history of physical, verbal and emotional abuse. Joel was stabbed by his father three years ago.
Joel has written: “He is extremely violent and volatile. He has threatened to ‘wrap me around a tree’. I’m worried that my brothers and sister are in danger.”
Dr Livermore, who is also the author of the Family Law Handbook, argues that young people like Joel have a lot to contribute to informed decision-making about care arrangements for children and the crafting of sustainable outcomes.
Currently, young people are usually required to start family law proceedings with a case guardian. Additionally, young people are also not allowed to give direct instructions to a lawyer.
The submission argues that the Family Law Act does not allow for the voices of young people to be clearly heard, a position which is out of step with the United Nation’s Convention on the Rights of the Child, and the approach taken under state-based child protection laws.
“Despite children and young people being at the centre of parenting disputes, their views are almost always filtered, before they even reach the court, by adults who apply their own ideas about what should happen,” says Dr Livermore.
“Young people do not generally talk to judges, they don’t take part in mediation, and there is often no independent children’s lawyer or family consultant appointed. Quite apart from the rights issue, if the court is aiming to make a workable, sustainable decisions about arrangements for children, it is losing valuable data in not hearing directly from the people it matters the most to.
“It is fact that children and young people most often are fully aware that there is dispute about their parenting and, very often, have strong views about what should happen. They want to, and need to, be heard.”
The Turnbull Government announced the first comprehensive review into the family law system in 2017.